Bulletin Board Magazine 2018 Volume 4

Legal/Legislative Continued for dune construction. Though both dune construction and access easements relate to shore protection, the former directly enable and contribute to such protection, whereas the latter are merely incidental to it. In that sense, the Tomasi easements are arguably less justifiable than dune construction easements in the eminent domain context – and the defendants in Tomasi appeared to base their public purpose-driven arguments on precisely that premise. However, the court evidently

for eminent domain purposes. Arguably, under the facts of this case, that is a logically defensible outcome, as the acquisition of the access easements was a de-facto prerequisite for constructing dunes and otherwise protecting its shoreline area, per the Army Corps and DEP regulations. Accordingly, a possible implication for future cases is that the precise nature of the condemnation easement in question will not necessarily be dispositive, and the focus of a reviewing court’s inquiry instead will be whether such

Though the implications of this decision remain in question as a result of the fact specific nature of the decision, Tomasi clearly stands for the proposition that beach access condemnation easements to obtain federal funding for shore protection projects are permissible exercises of municipal eminent domain power.

did not find the above-described “direct vs. incidental” distinction meaningful and rejected the defendants’ argument, finding that pursuing federal funding for shoreline protection was a sufficient public purpose

an easement is ultimately necessary to effectuate the contemplated shoreline protection program.

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